MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 September 2001
         DOCKET NUMBER: AR2001058428

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Kenneth W. Lapin		Member
Ms. Paula Mokulis		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That her physical disability discharge with severance pay be changed to a medical retirement.

APPLICANT STATES: That she noted her back problems on the Report of Medical Assessment, DD Form 2697, as well as on the Report of Medical History, SF 93, but they were not addressed on the Report of Medical Examination, SF 88. Her medical board proceedings were done by the Air Force at Wilford Hall Medical Center in San Antonio, TX and were limited to conditions listed on her SF 88, i. e., her right ankle and both knees. Her fluoroscopy dated 25 September 1998 shows there was some irregularity observed with her L5. By this time she had received the decision of 10 percent and had requested an appeal to appear before the Physical Evaluation Board (PEB), which was scheduled for 30 September 1998. She asked for a postponement until she could be assessed but was denied. She inquired as to what she could do but was told that it was too late in the administrative process and that she should follow-up with the VA. The VA has increased her disability percentage to
30 percent based on her lumbosacral disc disease.

EVIDENCE OF RECORD: The applicant's military records show:

After having had prior service in the U. S. Army Reserve, she enlisted in the Regular Army on 19 April 1990.

A DD Form 2697 dated 20 April 1998 is annotated that the applicant had recurring low back pain in addition to other medical conditions such as ankle and knee problems and severe gum disease.

An SF 93 dated 20 April 1998 is annotated that the applicant had intermittent low back pain in addition to other medical conditions such as ankle and knee problems, stomach cramps, car sickness and sometimes air sickness.

A medical board SF 88 dated 20 April 1998, item 73 indicates that the applicant had a permanent L3 profile for chronic right ankle and bilateral knee pain. The only other conditions noted were that she exceeded the weight/height limits and was myopic.

On 13 May 1998, the applicant’s commander noted that the applicant was incapable of reasonably performing her duties due to chronic right ankle and knee problems. No back problems were mentioned.

A medical board which convened on 21 May 1998 at Wilford Hall Medical Center diagnosed the applicant with right ankle osteochondral defect and osteoarthritis status post arthroscopy with curettage 1994 and 1996 with persistent pain and duty restrictions greater than 2 years. She was referred to the U. S. Army reviewing authority for disposition.
On 19 June 1998, a Medical Evaluation Board (MEB) diagnosed the applicant with right ankle osteochondral defect and osteoarthritis status post arthroscopy with curettage 1994 and 1996 with persistent pain and duty restrictions greater than 2 years, fatigue, seborrheic dermatitis, joint pain, and tension headache. She was referred to a PEB. On 23 June 1998, the applicant agreed with the board’s findings and recommendation.

On 31 August 1998, an informal PEB found the applicant unfit for duty by reason of chronic pain, right ankle due to osteochondral defect and osteoarthritis with a disability rating of 10 percent. The diagnoses of fatigue, seborrheic dermatitis, joint pain, and tension headache were found to be not unfitting and not rated. On 29 September 1998, the applicant concurred in the findings and recommendations and waived a formal hearing of her case.

On 21 December 1998, the applicant was discharged, with severance pay, by reason of a physical disability in pay grade E-5. She had completed 9 years, 1 month, and 5 days of creditable active service.

On 26 February 2001, the VA awarded the applicant disability compensation of 20 percent for herniated disc of the lumbar spine.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. It states that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.

The VA Schedule of Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating. Once a soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions from the VASRD.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine

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medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical
condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. The Board notes that the applicant’s back pain is mentioned on her DD Form 2697 and SF 93; however, conditions such as severe gum disease and car sickness are also mentioned yet they were not considered by the MEB. Her commander stated that she could not perform her duties because of her ankle and knee problems. It was not mentioned that back pain prevented her from performing her duties. The Board notes that the applicant agreed with the MEB’s findings and recommendations.

3. The rating action by the VA does not necessarily demonstrate an error or injustice in the Army rating. The VA, operating under its own policies and regulation, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i. e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the Army at one level and by the VA at another level.

4. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__rjw___ __kwl___ __pm____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058428
SUFFIX
RECON
DATE BOARDED	20010920
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.